1
Collaborative Authorship of Distance Learning Materials : Hidden Copyright and Moral Rights Problems *
Louise Longdin **
I. INTRODUCTION
Demand for and participation in online tertiary education is ever increasing. The ubiquity of digital networks and the accompanying highly effective delivery technologies allow students almost anywhere asynchronous access to course materials. Commodification of copyrightable instructional materials in digital format has become a seriously competitive industry as universities respond to a steep decline in state funding by trying to reach and charge as many students as possible while simultaneously decreasing their costs of delivery and infrastructure. While it is commonplace that all copyright works to some extent draw on and derive from works that precede them,[1] networked computers have made this process more pronounced. It is now much easier for lecturers to engage in academic espionage, to reach across jurisdictions to assess, copy and cannabalise all kinds of electronic copyrightable material (often from academic websites with weak or no technological fences[2]) as filler for their lectures, workshops and tutorials (both real and virtual). At the same the time development and ready availability of “collaborative friendly”[3] technology have increased the ability of lecturers (networked or not) to engage in authorial collaboration (both sequential and simultaneous) in putting together online courses and programmes. As with the collaborative art movement on the Internet, “authorial identity and intent have become profoundly malleable and interactive.”[4] Thus, while an online course or programme may be brought into existence by the efforts of a single individual, it is very likely that several minds have had an input into what is both a derivative and creative product. Online courses typically do not remain static. Each time they are offered, they are reworked, built on and transformed and may be even be used with another institution as the common currency of a joint teaching venture. Thus, all parties involved in an online course will consider themselves to have in some sense a claim to it. Given that in the words of one American judge, ‘professors are a peripatetic lot, moving from campus to campus,’[5] many would assert the right to both arrive at and depart from an institution of higher learning with prepared lectures and course materials (or the wherewithal to prepare or revise them) as their stock of trade, [6]an attitude which comports with that expressed by Lord Dunshaw of Dunferline[7] many decades ago:
[A] man’s aptitudes, his skill, his dexterity, his manual or mental ability — all those things which in sound philosophical language are not objective, but subjective — they may and ought not to be relinquished by a servant; they are not his master’s property — they are his own property; they are himself.
Nowadays however, an increasing number of institutions of higher learning which have opted to develop an online arm are being forced to confront the issue of who has the right to own, manage, adapt and disseminate teaching materials in digital format and the mechanisms which deliver them. Tension may arise between employed academics and employing institutions over the authorship and ownership of copyright works produced by academic employees in the course of teaching and/or carrying out research. Some universities may simply proclaim ownership of anything and everything pertaining to the content and delivery of their electronic courses. Others may induce their already employed lecturers to devise teaching and learning materials for distance learning purposes by making special payments or commission a Web course developer to select the appropriate software and coordinate all content contributions. Since a not inconsiderable body of legal commentary now deals with the default copyright ownership rules applying to works produced both offline and online by academic employees, it is not the intention of this writer to revisit this particular aspect of the online debate.[8] Rather this paper explores the key issues of authorship, ownership, use and reward in relation to the collaborative effort that must often be relied upon to put courses online, an exploration conducted primarily in a copyright, rather than restraint of trade context. Its focus, thus, rests largely on the copyright consequences when courses or parts of online courses are jointly, solely or collectively authored.
A.An Anatomy of Potential Disputes
At any one time, there may be many competing fingers scratching for a piece of an online educational pie. Several persons may have at different times contributed to it by creating the different works or parts of works that may go towards making up the composite work that is the whole course. Again. as seen below, a course as a compilation, may also include films, sound recordings and computer programs all with a separate copyright identity.
Author versus author disputes may surface in relation to collectively produced courses after one putative author attempts to subsequently reuse or adapt course components such as syllabi, slides, problems, notes, videoed lectures, examination questions, bibliographies, recommended reading lists (or otherwise exercise one or more of the rights attaching to copyright ownership) without the prior consent of all co-authors. Challenges may also arise where it emerges that material contributed by one author is not original and has already been wholly or partly published by another institution and the copyright sold or assigned. To this may be added the possibility of conflict between student and teacher where students record and sell on lectures[9]and when student research is incorporated into teaching materials.[10] Nor are authorial disputes always about money. Even where the allocation of ownership is settled by contract, expected outcomes can unravel when one member of the team (or someone who claims to be such) wants to be acknowledged as author or seeks to exercise a veto over changes to the work and to that end invokes his or her moral rights.[11]
B.Multi-Authored Courses: Emerging Fault Lines
When educational courses are devised they may draw on a number of works and parts of works as well as use material in the public domain that is not subject to copyright at all. In the online learning environment where traditional copyright works are digitised and delivered online (in whole or in part) they do not lose their separate identity as literary, artistic, musical or dramatic works. The same principle applies to the less traditional heads of copyright subject matter such as sound recordings, broadcasts, films or cable-casts. In the result, the amalgam of works, parts of works and public domain material delivered online may be a compilation (a separate category of literary work under most copyright regimes) if put together through the sufficient exercise of skill and judgment by an identifiable compiler and/or a collaborative work by the authors of its component parts. In such cases separate parallel copyrights exist in the underlying works and in the compilation itself. The compiler of the work (if any) may exercise rights in the compilation but not qua compiler in any underlying works or parts of works. All of this material will be organised and accessed through a computer program or programs which may have more than one creator and which themselves may be compilations or composite works. Thus websites delivering online courses may be the end product of collaboration between website designers who have contributed computer programs or compilations of programs and various content providers who have contributed all or parts of stand alone works (commonly literary and artistic works and sound recordings). Author versus author disputes can appear at or between all or any of these levels. If litigated they are likely to settle along significant fault lines in copyright: on the one hand, uncertainty both as to the nature and consequences of collaborative authorship, on the other, the imported distinction between compilations and other forms of composite work such as films and sound recordings which have been granted a separate identity for copyright purposes.
II. MULTIPLE AUTHORSHIP’S UNCERTAIN LEGAL FRAMEWORK
Not all contributions to a work carry authorship or ownership with them. What is contributed must be original expression,[12] concepts which are both elusive in themselves[13] and which vary across jurisdictions. Even when these hurdles have been surmounted there remains the problem of allocating the collaborative work to the appropriate legal category. Most common law regimes envisage two scenarios as being likely to arise.[14] Where the contributions are indivisible and unidentifiable, the work is said to be one of joint authorship and treated as subject to a single copyright belonging to all joint authors. Conversely, where contributions are severable each author enjoys a separate copyright in relation to his or her work. A third much more problematic scenario is also explored. This arises where contributions to a collective work are clearly attributable to a particular author but are not free standing works in their own right. The more atomised contributions are, the more likely they are to fall into this category for want of originality. The status of these multi-authored works is indeterminate. Not being themselves works the severable parts are not capable of separate ownership and yet the whole which they go to make up remains somewhat shadowy in most copyright regimes. Should ownership be contested such works may not be easily exploitable by anyone. There are several reasons why this form of collaborative authorship continues to languish in legal limbo. For works such as films and sound recordings where authorship is artificially ascribedthe problem cannot arise. Modern technology sometimes makes it difficult to isolate the true creator of some kinds of copyright work. In the United Kingdom and New Zealand the copyright statute gets around this problem by providing that in the case of broadcasts, it is the "maker" of the broadcast who creates it and similarly with cable programmes, it is the "provider" of the "service" in which the programme is included who is the first owner. It is also the person who "makes the arrangements necessary for making" sound recordings and films who is deemed to create them.[15] In the case of works other than the above, the issue is sidestepped in most systems of copyright law by:
(i)Relegating some contributors to the status of non authors on factually flimsy grounds.[16]
(ii)Treating the whole as a compilation (thus begging the question of whether creation and compilation can be contemporaneous, or
(iii)Assuming that separate authors must mean separate works, thus banishing this troublesome category entirely.
In sum, there are essentially two legal issues facing universities and their staff here. The first concerns the type of collaborative authorship involved. The second seeks to pin down the appropriate default rule for sharing rights and obligations in each category.
A.Forms of Collaborative Authorship
A collaborative or collectively authored work for the purposes of this paper is one brought into existence by the skill, labour and creativity of more than one person. The legal consequences of collaborative authorship have according to one United States commentator “led most courts to proceed with caution in assessing joint authorship claims by putative co-authors, at least where those claims are disputed by a party asserting sole authorship of the work.” [17]
In common law jurisdictions it is the unseverable collective work which has been given the most extended legislative treatment and attracted the most judicial comment. Thus, in the United Kingdom,[18] courts have ruled that several criteria have to be satisfied before a work prepared by two or more creators can be regarded as a ‘work of joint authorship’. First, all putative joint authors[19] must have contributed at least skill and labour to the work in which copyright subsists.[20] Such contributions need not be equal in either a qualitative or a quantitative sense provided they are significant.[21] They must, however, be contributions by way of expression not mere facts or ideas. Contributions to the creation of an online course involving promotional or marketing strategies (no matter how essential to its eventual success) do not an author make. Nor is every technical contribution an act of authorship.[22]Also excluded as joint authors are mere assistants such as persons who scan hard copy content into digital form, operate word processors, and make minor editorial changes and additions to the original work.[23]
The second requirement for a work of joint authorship is that all of the putative joint authors must have pursued a common goal.[24] Common purpose does not, however, require a common physical presence. It is perfectly possible for all collaboration between authors to take place electronically and for them never to meet in person.[25] It does, however, suggest that at the very least they must be aware of each other’s existence and the nature of the common enterprise in which they are supposedly engaged.[26] Provided these stipulations are met, authorial collaboration may be sequential or contemporaneous. Thus the collaboration test may be satisfied where one author first drafts the structural bones of a course and others subsequently flesh them out with narrative, graphics, photographs and other material even though the development of the work occurs in a time layered way.[27] Again while joint authorship must be conscious it does not require a contract to bring it into existence. Persons pursuing a common creative end can easily find themselves in that relationship without having first entered into a formal written agreement. Nor is it necessary to imply such an agreement to bring about this result. Like the ascribed managerial authorship (discussed both above and below) joint authorship is a question of fact not a matter of agreement between the parties.[28] Lastly, any work of joint ownership must be an integrated whole, with the contributions of the joint authors merging into inseparable parts of that whole. This is a subjective test, determined objectively, depending on appearance to the external eye or ear rather than the intent of contributors. It would deny joint authorship status to two or more scholars who write separate modules for an online course but do not otherwise merge their still otherwise visibly distinct contributions.[29]
Joint authorship needs to be distinguished from the act of compilation. A website which delivers an online course may be protected in its entirety as a literary work in the form of a compilation if sufficient skill, expertise or labour is found to have gone into the selection and display of its underlying components (these may include facts and public domain materials as well as works or parts of technological and academic works protectable in their own right.) Whenever such digitised compilations undergo extensive updating and rearrangement they again may be subject as a whole to fresh copyright. The author of a compilation will be the person who has exercised skill and expertise in putting the contents of a course together (they may also have contributed one or more of the underlying works). Assembling the compilation may well involve a collaborative effort in which case the issue arises whether the multiple compilers are joint authors of the compilation as well. (The line between editing and compiling will be especially hard to draw in such cases.)
B. Rights of Collaborative Authors Inter Se
Where there is more than one author of a work, the severability or otherwise of a particular contribution to that work determines the rights of the co-authors qua co-owners.[30]The default position is clear in the case of the authors of severable contributions. They are entitled (absent express agreement otherwise) to a pro rata share of royalties for the work as a whole and to individually exercise economic and moral rights in relation to their own contribution. It appears that where lecturers’ contributions to a work are discrete parts of that whole work, they are perfectly free to take and adapt those contributions and to assign, licence or bequeath their rights without the consent or knowledge of the other authors. Not so clear, on the other hand, is the default position of joint authors who have made unseverable contributions to a jointly authored work. Are they to be treated for ownership purposes as joint tenants or tenants in common? Logically, one would expect that authors of a supposedly seamless work of joint authorship would enjoy an undivided interest in that work and be treated as joint tenants. Such treatment would entitle them to an equal share of the profits even if their contributions are comparatively small. In Commonwealth jurisdictions, however, the default rule for joint authors appears to be (absent agreement to the contrary[31]) not joint tenancy but tenancy in common.[32]A recent United Kingdom High Court decision Bamgboye v Reed[33]demonstrates how forensic judges are prepared to be in mapping authorial shares to contribution. The case dealt with the authorship of a musical piece called “Bouncing Flow” The judge was prepared to actively dissect the work and find that one party had contributed the melody, the drum pattern and cymbal effects although these elements could not readily be severed from the piece as stand alone works. In the result the party contributing these elements was considered a “joint author” of the work to the extent of thirty three percent.